DoJ guidelines on Obama drug-war clemency: 10 years in prison minimum

posted at 12:01 pm on April 23, 2014 by Ed Morrissey

The Obama administration’s new clemency efforts became official today, as the Department of Justice announced the start of their revamp of the petition process that could end up commuting thousands of sentences. Deputy Attorney General James Cole promised “an extensive screening system” to identify only those who have served significant time in federal prison for their offenses, have kept their noses clean (figuratively and literally), and whose convictions did not involve violence. The DoJ will offer pro bono legal services to those who qualify to navigate the clemency petition process as well:

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

Identifying worthy candidates within our large prison population will be no easy feat. A good number of inmates will not meet the six criteria. But we are dedicating significant time and resources to ensure that all potentially eligible petitions are reviewed and then processed quickly to ensure timely justice.

First, we have put in place an extensive screening mechanism. Next week, the Bureau of Prisons is notifying all federal inmates of our initiative and providing them with these six criteria. If an inmate believes he or she fits these six criteria, the Bureau of Prisons will provide them with an electronic survey to fill out that will allow Department lawyers to efficiently screen whether the petition merits further consideration.

Second, I am pleased to announce that all inmates who appear to meet these six criteria will be offered the assistance of an experienced pro bono attorney in preparing his or her application for clemency. In January, I gave a speech to the New York State Bar Association in which I called upon private attorneys to volunteer to assist potential candidates in assembling commutation petitions – ones which provide a focused presentation of the information the Department and the President will consider – in order to meaningfully evaluate whether a petitioner qualifies under this initiative. Since that time, dedicated and experienced criminal defense and nonprofit lawyers have responded to that call. These numerous groups and individual attorneys, who are calling themselves Clemency Project 2014, will be working with inmates who appear to meet the six criteria and request the assistance of a lawyer. I am very grateful for the work of these volunteers and am confident that their commitment and expertise will result in high-quality petitions that the Department of Justice will be able to process on a more efficient basis.

They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;

They have served at least 10 years of their prison sentence;

They do not have a significant criminal history;

They have demonstrated good conduct in prison; and

They have no history of violence prior to or during their current term of imprisonment.

These seem like rational set of guidelines for clemency in general, and for this project in particular. The prerequisite of having to serve 10 years should mitigate the objection that this is letting people off scot-free for their crimes. The same is true for their good-behavior records, especially the “no violence” requirement for both their crimes and their incarceration. These criteria and the process announced also shows that this isn’t a “blanket” amnesty, but still a case-by-case review of clemency petitions that presidents have almost always used for this process. Only the focus and the criteria have changed, and the amount of resources applied to the effort.

By the way, while people recall that Jimmy Carter offered an unconditional blanket pardon to Vietnam War draft dodgers, they forget that Gerald Ford also offered a blanket conditional amnesty to the same group. Just a month after assuming office, Ford offered pardons through executive clemency in exchange for two years of public service. Both of those were more broad than what’s being proposed here, and didn’t include the kind of criteria announced by the DoJ today.

One objection that could arise is to what “significant” means in terms of criminal history or ties to crime syndicates, gangs, and cartels. The subjective nature of “significant” will generate plenty of cynicism, especially for an administration that routinely bends data and facts to the breaking point on other subjects and projects it want to promote. However, a balancing interest will be — at least for a short period of time, while Obama remains in office — the political damage that reoffenders will cause. They do have a rational incentive to avoid offering clemency to those, especially since even a rigorous application of these standards will likely produce a few thousand cases where clemency is appropriate.

Note too that these limitations are self-applied anyway. The clemency power of the executive is nearly absolute, which means that any administration can use whatever criteria it desires when offering pardons and commutations. The legislative and judicial branches have no say in this process; only the power of voters can check the executive over clemency actions. It’s why presidents have waited until after elections to issue more pardons; Bill Clinton issued over two hundred in his final month in office after barely using the power over the previous 95 months — most egregiously on behalf of a party crony. Article II, Section 2 of the Constitution only limits the power of clemency to federal crimes and only bars it from pardoning those impeached by Congress, emphasis mine:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

A President could, in fact, empty federal prisons through this power if he so chose, but he wouldn’t last long in office if he did. Congress would impeach a President who did that, as impeachment is a political act as well as a judicial act — but it wouldn’t reverse the clemency actions once issued.

This seems like a rational effort to give some people a chance to re-enter society after serving significant time and demonstrating their potential for rehabilitation. We should watch the White House’s execution of its project, but refrain from hysterics over it.

Blowback

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That would depend on the state, and perhaps whether they get pardons or commutations. The criteria are oriented toward commutations, not pardons. But voting rights and restoration thereof falls mainly under state rather than federal jurisdiction.

That would depend on the state, and perhaps whether they get pardons or commutations. The criteria are oriented toward commutations, not pardons. But voting rights and restoration thereof falls mainly under state rather than federal jurisdiction.

Ed Morrissey on April 23, 2014 at 12:10 PM

Since when has Obama let States stand in the way of his grand designs? The ultimate goal of all this is more Democrat votes or they wouldn’t be bothering.

Either that or the other classic purpose of emptying prisons by Dictators: release criminals into the general populace to cause chaos.

Yay!! More Dem voters! Now all Obama has to do is allow felons to vote. This and amnesty for illegals will guarantee Democrat rule for the rest of our lives and beyond. So keep celebrating this and defending it Ed and various other conservatives/libertarians. Great news!!!!

A President could, in fact, empty federal prisons through this power if he so chose, but he wouldn’t last long in office if he did. Congress would impeach a President who did that, as impeachment is a political act as well as a judicial act — but it wouldn’t reverse the clemency actions once issued.

No, the attorneys are offering their services pro bono as the excerpt reports, which means no one pays. The DoJ will connect the attorneys to the petitioners, which will have some administrative cost.

Ed Morrissey on April 23, 2014 at 12:12 PM

but we pay the doj salary.
so even though the person themselves is not paying the doj lawyers are not going to be working doing the paperwork, tracking the individual and connecting to their assigned lawyer on their own time after working hours.
they will be doing that stuff during normal working hours and I would not be surprised to see a task force dedicated just to this.
so yeah, we do pay again.

This seems like a rational effort to give some people a chance to re-enter society after serving significant time and demonstrating their potential for rehabilitation. We should watch the White House’s execution of its project, but refrain from hysterics over it.

So dissent to the idea that these criminals deserve clemency is going to be chalked up as hysterics? Sorry but despite the claims made by the soft-hearted, one does not get a lengthy jail sentence for having a couple of ounces of pot. Nor is it likely that we’re talking about first-time offenders.

I still maintain that this is all part of some quid pro quo with the New Black Panthers or similar groups. A method that allows Obama to put pushers back on the streets to do the kind of community organizing that nobody wants to talk about in polite society. The society where we give this administration the benefit of the doubt and scream about the “hysterics” of being opposed to clemency for criminals.

A President could, in fact, empty federal prisons through this power if he so chose, but he wouldn’t last long in office if he did. Congress would impeach a President who did that, as impeachment is a political act as well as a judicial act — but it wouldn’t reverse the clemency actions once issued.

Pfft.

NotCoach on April 23, 2014 at 12:16 PM

Exactly. Obama could murder a 6 year old live on TV in the most grisly matter possible and this Congress would never impeach him.

Maybe 5 years of Obama has made me cynical but…remember the 2000 elections in Florida when Democrats knowingly let about 5600 felons vote in the election? ANd by knowingly, I mean they refused to use the purge list to correct the registration roles.

65% of the felons who voted were registered Democrats so that is 3640 Gore votes that shouldn’t have counted. But instead we got treated to hanging chads and discerning voter intent from marks on the punch cards.

After that, Democrats became very interested in restoring the right to vote to convicted felons and we still hear the idea pop up from time to time. The key argument against, for me, is that we don’t politicians campaigning for the felon vote since felons disregarded the laws of the land and should therefore have no say in what becomes law.

But, in my mind, this is no different than amnesty for illegals. Can you say Permanent Democrat Majority?

PS whether laws have changed since these sentences is irrelevant. What is relevant is that the sentences of the time were well publicized in the War on Drugs and these convicts decided to risk the long sentences anyway.

Put another way, when I was young I got a speeding ticket for driving 65 on a 55 mph interstate. The speed limit on that interstate is now 70 mph…should I get a refund?

They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
They have served at least 10 years of their prison sentence;
They do not have a significant criminal history;
They have demonstrated good conduct in prison; and
They have no history of violence prior to or during their current term of imprisonment.

These seem like rational set of guidelines for clemency in general, and for this project in particular. The prerequisite of having to serve 10 years should mitigate the objection that this is letting people off scot-free for their crimes.

Those are fairly reasonable criteria, although it does call into question why it doesn’t instead go through the legislative process.

That would depend on the state, and perhaps whether they get pardons or commutations. The criteria are oriented toward commutations, not pardons. But voting rights and restoration thereof falls mainly under state rather than federal jurisdiction.

Ed Morrissey on April 23, 2014 at 12:10 PM

And I wonder if we’ll see pardons/commutations being politicized and more of them (proportionally) benefiting states that would allow these freed people to vote. Remember when Government Motors seemed to approach dealership cancellations in a politicized way?

But, in my mind, this is no different than amnesty for illegals. Can you say Permanent Democrat Majority?

sgmstv on April 23, 2014 at 12:20 PM

This is their goal, but even if they achieve that the reality will be quite different.

A “permanent” Looter State CANNOT last very long. The United States has just about tapped out all it’s international credit now as it is! Who in their right mind is going to buy US debt (and I’d argue you are out of your mind to buy it even now!) with a government without opposition constantly robbing and oppressing it’s rapidly declining PRODUCTIVE CLASS to redistribute it (plus what is borrowed) to a majority class that produces NOTHING?

We’re already at that point, with nearly a 2-1 Parasite to Producer ratio as it is, we’re already WELL past the “red line” of sustainability.

To that end, it doesn’t matter how many Illegal Amigos and felons the Democrats have voting for them because the Producers will CHANGE THE GOVERNMENT. They will have the power to. Whether that involves changing who is allowed to vote (I strongly believe only those not employed by the government OR not on the government dole should even be allowed to vote!), trying to kick the illegals out, OR (most likely scenario) carving out a separate nation from DC will be decided within the next generation.

Those are fairly reasonable criteria, although it does call into question why it doesn’t instead go through the legislative process.

Stoic Patriot on April 23, 2014 at 12:20 PM

Because legislators might not rubber stamp what the Dictator wants done in exactly the way he wants it done, because they still have that ability?

This is how far over the line we are into Dictatorship: If Congress were to pass a law BLESSING everything Obama has done to this point with “his pen and his phone” Obama would VETO it for one simple reason: it would be acknowledging that Congress actually has something to say about law in this country!

By the way, while people recall that Jimmy Carter offered an unconditional blanket pardon to Vietnam War draft dodgers, they forget that Gerald Ford also offered a blanket conditional amnesty to the same group. Just a month after assuming office, Ford offered pardons through executive clemency in exchange for two years of public service. Both of those were more broad than what’s being proposed here, and didn’t include the kind of criteria announced by the DoJ today.

Reason by analogy much? Drug dealing vs. running to Canada? Probably one of the starkest examples of apples and oranges found anywhere.

Ed, I think you basically said “We can’t do anything about it anyway but lets not get hysterical” and backed it up with fair facts. Well done in my humble opinion.

My only question is, can a felon who is granted clemency proceed to vote legally? I know that some dems are actively pushing to allow felons to vote anyway but no idea if “Clemency” is effectively wiping the slate clean in practice.

Reason by analogy much? Drug dealing vs. running to Canada? Probably one of the starkest examples of apples and oranges found anywhere.

BuckeyeSam on April 23, 2014 at 12:33 PM

I could argue that both are justified.

The draft: One of many crimes against the Republic committed by Abraham Lincoln, whom I rate worst President of ALL TIME. The draft was (and is, since it could still be started back up by act of Congress) one of those powers the Government USURPED to itself that has been upheld by courts, and yet IS completely Unconstitutional.

The Drug War: While I am NOT in favor of narcotics being widespread, I think that is up to STATE AND LOCAL GOVERNMENTS, not the Federal Government for this reason: Where is the Constitutional Amendment, ratified by 3/4th of the States granting this power?

Indeed, the best intellectual argument I can think of to illustrate starkly how far our government has fallen from LEGITIMACY is to use this point:

How was Prohibition enacted, making alcoholic beverages illegal in all states? A: Constitutional Amendment.

How was Prohibition repealed, making the question of the legality of alcoholic beverages again a State issue? A: Constitutional Amendment.

Where is the Constitutional Amendment that makes, for example, pot illegal in all States? Bueller? Bueller?

Because once you make gang-affiliation separate from violence offense, ain’t no black or latino getting released on these guidelines.

budfox on April 23, 2014 at 12:27 PM

The weasel words are

without significant ties to large-scale criminal organizations, gangs, or cartels This gives the pro-clemency crowd an out because it is highly likely that if you’re in prison for drug-related crimes, you’re also a gang-banger.

But hey! Let’s not get “hysterical” here. I’m sure every single individual in prison was just at the wrong place at the wrong time when walking home from Bible study or something.

My only question is, can a felon who is granted clemency proceed to vote legally? I know that some dems are actively pushing to allow felons to vote anyway but no idea if “Clemency” is effectively wiping the slate clean in practice.

It’s more like a remission than a commutation. it sounds like a commutation or a substitution of penalties from the latter part of the first of the criteria,

“They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;”

But it’s pretty clear they just plan to cancel the rest of the sentence if the person fits all the criteria.

I think this is a good idea. My only reservation, and it is a big one, is this:

Since that time, dedicated and experienced criminal defense and nonprofit lawyers have responded to that call. These numerous groups and individual attorneys, who are calling themselves Clemency Project 2014, will be working with inmates who appear to meet the six criteria and request the assistance of a lawyer.

I have serious doubts this will be the volunteer project it’s being billed as, and the the main purpose of this effort is the continuance of the Administrations effort to dole out ever more of the taxpayer’s dollars to cronies. Obama has the ability to grant these pardons without any filings being made by the persons to be pardoned. The Federal government has the data available to identify and evaluate each person’s fitness with the criteria. The Administration doesn’t need this army of “volunteers”. Expect a large grant from various agencies to pay these folks relatively huge sums to do this work.

We’re still paying for it then, because Pro-Bono work is tax deductible, and they will probably be able to deduct it at a higher hourly rate than they would have been able to charge!

ConstantineXI on April 23, 2014 at 12:16 PM

You’re generally a fine commenter, but you have this one wrong–dead wrong.

The value of donated legal services are NOT deductible for federal income tax purposes. If you perform them, you may be able to deduct some mickey-mouse items such as supplies that are used exclusively for your volunteer services.

Here’s an explanation from a law firm’s website. Do a bing search for “deductibility of pro bono legal services.” Every source that comes up will tell you the same.

Has there ever been a precedent of an Executive Pardon of a crime that was committed against the Legislative Branch?

Probably not. However, Congress (assuming we still have one a year from now) also has the option of bringing Lerner and Holder back in front of them in the future, ordering them to testify, then holding them on a NEW citation of contempt for refusing.

If they wanted to play hardball like that. Which we know the GOPe won’t do. If the GOP took these charges seriously in the least they’d have LONG AGO appointed a select committee.

I know people are going to yell at me, but I honestly have no problem with these guidelines applied to a case-by-case review.

BigGator5 on April 23, 2014 at 12:34 PM

You might caveat that with the thought that you’re okay freeing felons so long as the guidelines are actually followed. As much as I am against this whole scheme, I’m even more distrustful of this administration doing the fair and reasonable thing.

But, no offense but I think you’re an idiot to think that this is the right thing to do or a good idea. The recidivism rate and likelihood of those freed will again go into the drug trade and/or commit acts of violence or other crimes is high. Of course you softies will only focus on a few cherry-picked cases and not the hordes of criminals let out of their cages as a result of these new guidelines.

I think the rules are to strict. I would reduce the time served to 3 years. Frankly, I don’t think we should be paying billions of dollars to feed and house drug users. Let let work in supervised probation programs, pay taxes, maybe do some community service. It is idiotic to have so many low level drug users in prison. The reason they are there is because of prison guard unions, the local community lobbyists , and the other folks that make money off of prisons and jails…

I actually would have liked to have seen a requirement that their sentencing was influenced or impacted by a Mandatory Minimum law.

If the judge personally decided that 30 years was a fair sentence, then I don’t care if you’ve served 10 years since 30 years is still a fair sentence for your crime if one was sentenced today. Different than if judge was forced to assign a time that was more severe than they wanted to give.

But IF these rules are followed would think they would still remove a good chunk of those seeking pardons. Assume a good amount of those people would have a basic assault charge, or some priors, or have affiliation with a gang. If they’re followed that is…

I actually thought “the first black President” would do something bold in this area. The number of people in prison for non-violent drug offenses is tragic. A true leader would have proposed something far more radical and asked Congress for money to help them assimilate to society. Politically risky, yes, but it would help the black community and would be what I would expect were I black (I am white) from a true black leader. The Prez is just a fraud on so many levels.

Here I thought this was going to be blanket clemency.
I know people are going to yell at me, but I honestly have no problem with these guidelines applied to a case-by-case review.
BigGator5 on April 23, 2014 at 12:34 PM

Yeah, I’m with you on this. I don’t trust them, but no doubt a few deserving guys will get a second chance in life and that might be a good thing. If they screw it up, we’ll just add it to the list come 2016.

Well, if anyone knows how to manage a few pardons and clemencies without making some great big scandal of it….

… it’s got to be Eric Holder!

There Goes the Neighborhood on April 23, 2014 at 5:56 PM

I probably shouldn’t assume everyone is familiar with Eric Holder’s role in the Clinton pardon scandal.

For those people who are not political junkies, or who somehow missed the story anyway — and shame on you for having lives –

Fitton recalled that Judicial Watch took the highly unusual step of opposing Holder’s appointment. “We knew Eric Holder was involved in the pardon scandal under the Clinton years, where he pushed for these pardons that were bought and paid for practically by Clinton patrons… That only scratches the surface of his problems. So he comes in, and sure enough, he is appointed and he turns into the politically-pliant Attorney General that we thought he would be.”